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HomeMy WebLinkAboutUnion 03-02-12 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY (NORTHERN COLLEGE) (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") AND IN THE MATFER OF A UNION GRIEVANCE #2654o1 (CONVERSION) (the "Grievance") BEFORE: C. Gordon Simmons, Chair Mr. R. FoB Employer Nominee Mr. Mike Sullivan, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. Wallace Kenney, Counsel APPEARANCES ON BEHALF OF THE UNION: Mr. Don Martin, Consultant A hearing into this matter was held in Timmins, Ontario on January 16, 2003. -2- This is a union grievance which claims a ~5olation of art. 1.2 "and any other article" (ex. 1) in that the employer failed to convert part-time staff in the gym in South Porcupine campus to full time. Article 1.2 reads: Staffing Considerations Recognizing that the College reserves the right as provided in Article 3, to determine the number and composition of full-time, part-time, and otherwise excluded positions, and to determine the work assignments that are appropriate in each case, the College agrees to endeavour to give preference to full-time over part-time assignments, and to convert part-time to full-time assignments where feasible, subject to such operational requirements as may be appropriate. As the hearing proceeded the union focussed as well on art. 15.3.3 which stipulates a specific obligation in layoff procedures it claimed were not adhered to. The relevant pro~Ssions of art. 15.3 are as follows: 15.3 Committee 15.3.1 Meetings In addition to committee meetings under Article 14.7.1, the Employment Stability Committee (ESC) shall meet within five (5) calendar days of the giving of such notice, unless the parties mutually agree to extend these time limits. 15.3.3 Recommendations It shall be the duty of the ESC to consider the matter and to make recommendations to the President of the College with respect to any or alt of the alternatives listed below which might be resorted to in order to prevent or minimize the dislocation of employees: Potential creation of vacancies that might be filled by affected employees; 2. Conversion of part-time positions and/or displacement of non- bargaining unit employees; 3. The utilization of other means, such as normal retirements, voluntary leaves or transfers in order to prevent or minimize the effects of the action contemplated; 4. The improvement of employment potential for employees affected by the provision of training or retraining programs and job counselling; 5. Investigation of potential alternative job opportunities that might exist for employees affected both w/thin and outside the College, such as comparable employment opportunities; -3- 6. The temporary assignment of redundant and displaced employees to positions held by other employees who are on various leaves of absences. It will be the duty of the ESC to make recommendations to the President of the College within fourteen (14) calendar days of notice provided under Article 15.2. Where the ESC is unable to agree on any recommendations, the members appointed by the Union and the members appointed by the College may make separate recommendations. Where separate recommendations are to be delivered they will be exchanged between the appointees prior to delivery. The facts may be stated briefly as follows. The employer decided to contract out certain caretaker work that had been performed by caretakers. Six caretakers were given layoff notices. None of the six employees filed a grievance. They were either accommodated by taking emplo~ent with the contractor; took early retirement packages or were accommodated elsewhere. But the union maintains there were part-time positions in the gym that ought to have been converted into full4ime thus providing work for full4ime employees. Therefore, the employer violated the collective agreement by failing to have carried out its obligation pursuant to art. 1.2. The Board was provided with a copy of the duties and responsibilities of a caretaker as described in the Position Description Form (ex. 5). They include: -4- APPROX. % TIME DUTIES AND RESPONSIBILITIES ANNUALLY Provides cleaning and basic maintenance 7o% services in all areas of college buildings. Maintains grounds using tractors, mowers, 5% etc. (mows grass, plants flowers, trees, trims shrubbery). Shovels snow, keeps entrance clear in winter. Ensures the safekeeping of all college 9% buildings and property by monitoring appropriate security measures. Moves furniture, equipment and supplies 8% to meet the needs of staff, students and visitors of college services Provides assistance to other departments 3% during peak periods. Ie: bulk mailings, errands during orientation week, etc. Performs other related duties as assigned 5% TOTAL: loo% The hourly start rate for Caretaker A is $13.56 as of September 1, 2000. The Gym Monitor or Wellness Centre Attendant are students who perform certain duties in the Gym and Wellness Centre. The description of their job duties are as follows (ex. 3): II DESCRIPTION OF JOB DUTIES: Wellness Centre Attendants II -5- · :o Booking courts and caridio [sic] equipment · :- Update memberships registry · :o Ensure guests are signed in and day passes are paid · :o Check IDs for minimum age requirements for weight rooms and courts · :. Sign out equipment, making sure it's in a good state of repair · :o Ensure persons using the weight room are instructed on the use of the equipment · :o Monitor courts, weight room, and gym to ensure the safety of the users · :o General cleaning of the athletic facility, ie light dusting, tidying, sweeping, vacuuming, etc. · :o Nightly deposits of day receipts Require minimum of 8 positions to accommodate total of 86.5 hours per week coverage. (These hours can be difficult to fill when working around student timetables.) Times open: Monday - Friday, 7:30 am - lO:OO pm Saturday & Sunday, 9:00 am - 4:00 pm RATE OF PAY; $6.85 + 4% HOURS PER WEEK: Up to 24, as needed EMPLOYMENT DATES; August 26, 2002 -- May 3, 2oo3_(or to date summer students begin work) The evidence disclosed students apply for these positions and receive $6.85 plus 4% per hour. Ms Tori Hanson, campus manager at Porcupine Campus in charge, inter alia, of the Gym and Fitness Centre, including the Wellness Centre, testified the funding for the athletic activities is provided by various means. These include: · student fees allotted for athletics; · community memberships; · Ontario Government through the Ontario Work Studies Plan (OWSP). Certain funding provided to colleges and universities by the Ontario Government is specifically earmarked for student employment. Northern College receives a yearly allotment through this source. · A tuition set aside fund. That is, the government stipulates 3o% oft~e increase of tuition fees since 2998 must be set aside for direct student assistance (ex. 4: Policy Manual respecting tuition fees, p. 22). The college calls this the needy student fund. -6- Thus, a major portion of the funding is provided by the Ontario Government which specifies the funds be used for student employment assistance. In addition, certain tuition fee increases are to be used for student assistance. If these funds were not allocated to student use they would disappear. That is, if full-time caretakers were to assume the duties performed by the students then not only would the college lose this special funding and tuition fee assistance it would be obligated to find the funds elsewhere which it maintains it does not possess. The students average lO hours per week of work. They book courts, sign people in, hand out towels, etc. from a central desk area; generally clean up after equipment has been used and receive money for day admission to the facilities. Ms Hanson was taken through the duties and responsibilities of the caretaker. She testified the students never perform any of the caretaker's duties that make up 70% of their duties as described in their job description as reproduced above. The only cleaning students perform is to mop up an area after usage by others who use the facilities and may require 5% (up to a maximum of lO%) of their time. However, the cleaning the students perform is never with the same intensity required of caretakers. In reviewing the remaining duties of the caretaker as reproduced above, Ms Hanson said students do a "tiny amount" of safekeeping by locking up their own area. They are not expected to move furniture and she assumes they might pro~Sde assistance from time to time to others but if they do it is their own goodwill and not one of their required duties. In turning to art. 15 the Board was informed the Committee met when it was first contemplated that certain caretakdng duties were being considered for contracting out. Managernent members of the Committee filed a separate recommendation to the President. -7- It recommended art. 15.4.3 (bumping procedure) be followed resulting in layoffs (ex. 8). The union members of the Committee recommended art. 1.9 be used to convert part-time g3xn positions to full-time positions. The recommendation reads (ex. 12): With regard to the Caretakers' layoffs, Local 654 recommendations follow: Under Article 1.2 convert part time gym positions to full time positions: The total number of part time hours for the gym operation is tee hours. Since all the work is similar in nature, this would make three (3) full time positions available to be offered to Denis Caron, Curt Da~Ss and Mario Barbuto. This would cause the least disruption and no displacement of staff. The Board is unable to conclude the process required by art. 15.3 was not followed. Article 15.3.3 provides for separate recommendations being delivered tothe President. The union suggests the management members failed to make a recommendation within the intent of the article. It simply recommended layoffs occur. It appears to the Board that unless the article strictly prohibits the Committee from recommending layoffs then as long as it follows the required procedure set out in the article it will have fulfilled its obligation. The Committee met. Its management members filed a separate recommendation to the president. Its union members filed a separate recommendation to the president. The article expressly permits the filing of separate recommendations. The required process was followed. Therefore, the Board is unable to find any violation of art. 15. The Board had an opportunity to review art. 1.2 on an earlier occasion. In a decision involving Cambrian College of Applied Arts & Technology and Ontario Public Service Employees Union (unreported), dated September 7,1994 (Simmons, Cameletti, McManus) the following appears on p. 7 of that decision: -8- We have detailed the requirements of the Needs Assessor position. When one looks carefully at Article 1.2 it would appear that the intent of the article is as the Employer has outlined to the Board. The Employer agrees to endeavour to give preference to full-time over part-time assignments and to convert part-time to full-time assignments where feasible. In our ~Sew, the assignments contemplated in Article 1.2 are assignments within a particular classification as submitted by the Employer. That is to say, if the Employer was found to be employing two part-time employees in a particular classification for 90 hours a week each, then it would seem that Article ~.2 would be the appropriate vehicle for the Union to demand that the two part-time positions be merged into one. In the Cambrian decision a number of various part-time positions were reviewed with a view to cobbling them together to make one full-time position. The positions were not confined to one classification. Additionally, the cost of conversion in the case of the Cook was significant if it was to be made into a full-time position. The Board concluded it was unable to order the employer carry out the expenditures required to accommodate the wishes of the union. It accepted the employer's position it would not be feasible to do so. In turning to the instant situation the Board finds the duties and responsibilities of the students do not resemble those of caretakers. The work each group performs is not related. Moreover, the source of funding for students would evaporate if the duties they perform were assigned to full-time caretakers. After having considered the evidence and submissions of the parties it is the view of the Board that art. 1.2 was never intended to address the existing situation. As was stated in the Cambrian decision, assignments contemplated in art. 1.2 are assignments within a particular classification where a number of part-time positions exist that can be merged into one full-time position. But that is not what is before us. We have found no resemblance in the duties performed by caretakers to those of students in the Gym or Wellness Centre. It must be our finding therefore that the classification of caretaker and the duties and -9- responsibilities set out therein do not fit within the job duties of the students as required in their job description. Accordingly, for all of the foregoing reasons, the grievance is dismissed. Dated at Kingston, Ontario, this 12th day of February, 2003. C. Gordon Simmons Chairperson R. Foy I concur/dissent R. Foy Employer Nominee Michael Sullivan I concur/dissent Michael Sullivan Union Nominee